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The Scope of Inherent Powers

Louis Fisher

in The Polarized Presidency of George W. Bush

This chapter explores the constitutional source of ‘inherent powers’. Firstly it analyzes what is meant by express, implied, and emergency powers. Then it examines closely the 1936 Supreme Court ... More

This chapter explores the constitutional source of ‘inherent powers’. Firstly it analyzes what is meant by express, implied, and emergency powers. Then it examines closely the 1936 Supreme Court case, Curtiss-Wright, that is most often cited for supporting inherent and extra-constitutional powers for the president. The chapter then moves to discussing the use of inherent powers by President Harry Truman in 1952 to seize steel mills to prosecute the war in Korea, and the reliance on inherent powers by President George W. Bush to accomplish a range of war-related actions. Truman's initiative was repudiated by the Supreme Court in the Youngstown case, but the legal and political limits of Bush's actions are still being played out.Less

Economic Emergency Powers: A Comparative Law Perspective

Christina Binder and August Reinisch

in International Investment Law and Comparative Public Law

The jurisprudence of investment tribunals in cases brought against Argentina in the context of the country's 2001/02 economic crisis show the potential and limits of the necessity defence as codified ... More

The jurisprudence of investment tribunals in cases brought against Argentina in the context of the country's 2001/02 economic crisis show the potential and limits of the necessity defence as codified in Article 25 of the ILC Articles on State Responsibility in situations of economic emergency. This chapter examines the emergency regimes of national legal systems for additional insights that might assist in more closely delineating a State's emergency powers in times of (economic) crisis; more particularly concerning the conditions governing the adoption of emergency measures and the consequences thereof. This is done with reference to four representative legal systems — two from common law jurisdictions and two from those under civil law: the British, French, German, and US systems.Less

Emergency? What Emergency?

Mark Neocleous

in Critique of Security

Building on the discussion of prerogative in the previous chapter, Chapter 2 offers a critique of the political discourse of ‘exception’. The chapter argues that the way to understand the politics of ... More

Building on the discussion of prerogative in the previous chapter, Chapter 2 offers a critique of the political discourse of ‘exception’. The chapter argues that the way to understand the politics of security is less through the ‘state of exception’ and much more through the logic of emergency powers. The chapter shows that emergency powers have seeped into law and become normalized. This has underpinned and reinforced the logic of security.Less

The Legal Context and Counter-insurgency by Committee

David French

in The British Way in Counter-Insurgency, 1945-1967

The British threw a veneer of legality over their operations by avoiding imposing martial law and instead employing emergency powers regulations to create a legal framework within which their ... More

The British threw a veneer of legality over their operations by avoiding imposing martial law and instead employing emergency powers regulations to create a legal framework within which their security forces operated. The meaning of the concept of ‘minimum necessary force’ precluded the British from employing genocidal methods against their opponents, but did permit them to employ a very high degree of often lethal force. In the absence of martial law, the civil administration and police were not subordinated to the army, and so the British they had to develop a form of machinery to enable them to coordinate the activities of the different branches of government. The result was counter-insurgency by committee.Less

Coming In, Rather Reluctantly, From the Cold

A. W. BRAIN SIMPSON

in Human Rights and the End of Empire: Britain and the Genesis of the European Convention

This chapter gives an account of the reappraisal of the convention which followed the Cyprus cases, and the problems it caused for UK colonial office. It describes the later derogations and the use ... More

This chapter gives an account of the reappraisal of the convention which followed the Cyprus cases, and the problems it caused for UK colonial office. It describes the later derogations and the use of emergency powers in Aden, Nyasaland, Northern Rhodesia, Sarawak, North Borneo, and Kenya and in Northern Ireland. It describes how the UK eventually accepted the jurisdiction of the court and the right of individual petition, relating this to the adoption of the policy of decolonization, and the chapter discusses the significance of the Lawless case, and concludes with brief discussion of the Human Rights Act of 1998.Less

Habeas Corpus, Fundamental Rights, and the Executive

Judith Farbey, R. J. Sharpe, and Simon Atrill

in The Law of Habeas Corpus

This chapter examines the use of habeas corpus where the liberty of the subject is restrained on account of an order made by the executive branch of government. The central issue is the extent to ... More

This chapter examines the use of habeas corpus where the liberty of the subject is restrained on account of an order made by the executive branch of government. The central issue is the extent to which the courts should control the exercise of discretionary powers. Broad discretionary powers may affect even such basic rights as personal freedom, but the courts can control the exercise of executive discretion when they wish to do so by defining the lawful limits of the power granted, and by making certain that the official has acted within those limits. The chapter examines the extent to which the principle that government officials must always be able to justify their action when called upon to do so before a court of law has been implemented on habeas corpus.Less

Negotiating the Rule of Law: Dilemmas of Security and Liberty Revisited

Ewa Atanassow and Ira Katznelson

in States of Exception in American History

Responding to Carl Schmitt’s critique of liberal democracy an important group of American political scientists in the 1930s and 1940s sought to address exigencies without compromising liberal ... More

Responding to Carl Schmitt’s critique of liberal democracy an important group of American political scientists in the 1930s and 1940s sought to address exigencies without compromising liberal principles, including respect for individual rights and the rule of law. They elaborated a liberal response to emergency that sanctioned departures from the rule of law only for strictly defined purposes and a limited period. This moment, we argue, when emergency powers could have clear limits, has passed. The invention and dissemination of atomic weapons, the Cold War, and the War on Terror, together with the deepening and increasing entrenchment of the security state, make that limited and strictly temporal approach to emergency no longer adequate. With the return of Schmitt’s challenge, it is imperative to think afresh about how liberalism might deal with security while staying true to itself. The essay draws on the wellsprings of political liberalism, many of whose central figures recognized the abiding need for prerogative power. Revisiting their proposed ways to reconcile a strong executive with the rule of law, we advocate an institutional imagination and identify models, such as the UK’s Investigatory Powers Tribunal, that, together, might serve us as the Roman model served our predecessors.Less

Constitutional Dictatorship in Twentieth-Century American Political Thought

Joel Isaac

in States of Exception in American History

There is a very important fork in the road in the contemporary political and legal theory of emergency: one following Schmitt’s path toward a theology of sovereignty, the other leading toward a ... More

There is a very important fork in the road in the contemporary political and legal theory of emergency: one following Schmitt’s path toward a theology of sovereignty, the other leading toward a liberal-pragmatic account of derogations from the rule of law in constitutional regimes. The purpose of this chapter is to show that the present split between Schmittians and liberals occurred much earlier than hitherto supposed, and on grounds that, while not identical to those cited in the current literature, resonate powerfully with more recent attempts by liberals to rethink the discretionary power of the executive without adopting Schmitt’s analytics. The chapter connects aspects of the present non-Schmittian theory of emergency with an earlier liberal account of constitutional dictatorship. This latter theory was developed by a group of political scientists working at North American universities from the late 1930s to the early 1950s. One of them, Carl J. Friedrich, was a German émigré who had encountered Schmitt’s teaching at first hand. The others were connected to Friedrich in one way or another. Their thought represents a vital resource in the effort to construct an American theory of emergency powers.Less

The Circle of War and Emergency

in Civic War & the Corruption of the Citizen

This chapter discusses how war feeds on emergency and emergency on war. It highlights the presence of violence within this circular relationship between war and emergency and analyzes the function of ... More

This chapter discusses how war feeds on emergency and emergency on war. It highlights the presence of violence within this circular relationship between war and emergency and analyzes the function of violence in American civic war. The chapter also discusses how expansions of the power to make war in the twentieth century occurred within an even more encompassing constitutional development: the growth of general emergency powers.Less

The Broadening Scope of Basic Structure Review: Emergency, Legislative, and Executive Powers

Sudhir Krishnaswamy

in Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine

In India, the doctrine of basic structure review was developed in the context of challenges to the validity of constitutional amendments. Ordinary legislative power and executive power is subject to ... More

In India, the doctrine of basic structure review was developed in the context of challenges to the validity of constitutional amendments. Ordinary legislative power and executive power is subject to judicial review by the high courts and the Supreme Court for competence and compliance with fundamental rights. The question of whether basic structure review would apply to these species of state action was considered and dismissed in Indira Gandhi v. Raj Narain. Subsequently, the court has moved away from this position and utilized basic structure review in conjunction with other available forms of review. The extension of basic structure review to emergency powers, as well as legislative and executive action, requires the court to either articulate a novel constitutional basis for such a power or offer good reasons for extending to these forms of state action the implied limitations which form the constitutional basis for basic structure review of constitutional amendments.Less

Parliament–Judiciary Relationship

B.L. Shankar and Valerian Rodrigues

in The Indian Parliament: A Democracy at Work

From a broadly acknowledged position of the primacy of the Parliament of India in the first two decades after independence, the scale tilted in favour of the judiciary with the Keshavanand Bharati ... More

From a broadly acknowledged position of the primacy of the Parliament of India in the first two decades after independence, the scale tilted in favour of the judiciary with the Keshavanand Bharati case. The Parliament attempted to curtail the growing influence of the judiciary during the Emergency. But with the Janata Party's rise to power in 1977, the judiciary increasingly assumed the role of being the guardian of the constitution and the rule of law in the country. This chapter highlights some of the major issues of conflict between the Parliament and judiciary such as spheres of authority, secularism and religious belonging, minority rights, religion and worship, democracy and rights, considerations of equality and reservation policy, representation, elections and emergency powers, and the concept of the ‘creamy layer’. It also discusses the issue of judicial activism and its bearing on the Parliamentary domain.Less

The Norm of Complicity and the Regeneration of Emergency through Violence

in Civic War & the Corruption of the Citizen

This chapter examines the role of violence in the norm of complicity and in the regeneration of emergency powers. In discuses the ways in which violence blurs boundaries that normally define social ... More

This chapter examines the role of violence in the norm of complicity and in the regeneration of emergency powers. In discuses the ways in which violence blurs boundaries that normally define social roles and common beliefs, and suggests that violence is a vehicle for highly exploitable modes of confusion and disorder capable of suspending disbelief. The chapter also contends that violence sustains the powers invoked in the name of emergency.Less

Introduction: Extra-Legal Measures and the Problem of Legitimacy

Clement Fatovic and Benjamin A. Kleinerman

in Extra-Legal Power and Legitimacy: Perspectives on Prerogative

This introductory chapter begins by considering the debates over the legality and scope of the government's use of emergency powers. It discusses the work of German constitutional and political ... More

This introductory chapter begins by considering the debates over the legality and scope of the government's use of emergency powers. It discusses the work of German constitutional and political theorist turned Nazi jurist, Carl Schmitt, who is cited by nearly all scholars who have taken up the debate over the validity of extra-legal measures in times of emergency. It then sets out the book's purpose, which is to survey various perspectives on prerogative, or extra-legal power, both from within the liberal constitutional tradition and from outside it. An overview of the subsequent chapters is also presented.Less

Filling the Void: Democratic Deliberation and the Legitimization of Extra-Legal Action

Clement Fatovic

in Extra-Legal Power and Legitimacy: Perspectives on Prerogative

This chapter argues that deliberation can and should be used to assess the expediency and the legitimacy of all emergency measures, legal or extra-legal. Deliberation provides the only way to ... More

This chapter argues that deliberation can and should be used to assess the expediency and the legitimacy of all emergency measures, legal or extra-legal. Deliberation provides the only way to legitimize the use of extra-legal measures consistent with the principles and values that are used to legitimize the law itself, without requiring any prior commitment to a narrow set of constitutional or political ideas. A deliberative model of emergency can accommodate the views of Locke or Lincoln, Hamilton or Jefferson, because it does not require a prior commitment to ideas that are particular to them or anyone else. A deliberative model of emergency would not necessarily identify in advance what justifies or restricts the use of emergency measures, but it could explain how and why their use could be justified or restricted.Less

Introduction

Stephen Morton

in States of Emergency: Colonialism, Literature and Law

This introductory chapter first sets out the book's purpose, which is to demonstrate the important contribution of writing and literary fiction to understanding the relationship between colonialism, ... More

This introductory chapter first sets out the book's purpose, which is to demonstrate the important contribution of writing and literary fiction to understanding the relationship between colonialism, law and political violence in the twentieth and twenty-first centuries. Specifically, it assesses the multiple and conflicting ways in which literary and cultural texts have either contributed to and/or interrogated the necessity for emergency legislation across a range of different historical and political contexts. The chapter then examines one of the foundational critical texts on states of emergency: Benjamin's Eighth Thesis on the concept of history. It goes on to discuss the literature of empire — an important resource for understanding the legal and extra-legal nuances of colonial states of emergency. An overview of the subsequent chapters is also presented.Less

‘The Supreme Concept of Bourgeois Society’: Liberalism and the Technique of Security

Mark Neocleous

in Critique of Security

This chapter challenges the liberal treatment of security and liberty. Rather than a mythical liberal ‘balance’ between security and liberty, the chapter argues that liberalism has in fact always ... More

This chapter challenges the liberal treatment of security and liberty. Rather than a mythical liberal ‘balance’ between security and liberty, the chapter argues that liberalism has in fact always prioritised security over liberty. It has done so through the logic of ‘emergency’ and ‘prerogative’, which allow for liberties which are supposedly fundamental to be suspended in the name of security. The chapter thus offers a critique of the liberal tradition, by arguing that liberalism's driving principle is security, and that security has been central to liberal order-building.Less

Lockean Prerogative: Productive Tensions

Leonard C. Feldman

in Extra-Legal Power and Legitimacy: Perspectives on Prerogative

This chapter examines Locke's theory of prerogative. Lockean prerogative is the basis of a large amount of contemporary post-9/11 scholarship on emergency powers, both work presenting Locke as a ... More

This chapter examines Locke's theory of prerogative. Lockean prerogative is the basis of a large amount of contemporary post-9/11 scholarship on emergency powers, both work presenting Locke as a normative model for the better management of discretionary crisis power and work presenting Locke more critically as the not-so-secret origin of our contemporary tangle of lawless emergency governance. It is argued that Lockean prerogative draws its power from four constitutive ambiguities or tensions: between the foreign and the domestic; between the constitutional and the extra-constitutional; between the normal and the extraordinary; and between the normative and the descriptive. That prerogative is best understood as liminal: It is a power occupying an “in-between” space and it is this liminality that accounts for prerogative's resilience. These tensions or ambiguities structure contemporary discussions of prerogative and, to an extent, emergency powers more broadly.Less